Coker v. City Of Rome

• Decision Date: 18 June 1936
• Docket Number: No. 25208.,25208.
• Citation: 186 S.E. 585,53 Ga.App. 533
• Parties: COKER. v. CITY OF ROME.
• Court: Georgia Court of Appeals

53 Ga.App. 533

186 S.E. 585

COKER.

v.CITY OF ROME.

No. 25208.

Court of Appeals of Georgia,

Division No. 2.

June 18, 1936.

Syllabus by the Court.

1. Under the rulings made in City of Brunswick v. Glogauer, 158 Ga. 792 (1), 801-812, 124 S.E. 787, and the cases there cited, the defect in a city sidewalk, as described in the petition suing the municipality for person al injuries, although of a size and nature ordinarily classed as a "minor defect, " was not such a one as will require a holding as a matter of law on demurrer that the defendant was not negligent in the performance of it's legal duty to keep its public streets and sidewalks in a reasonably safe condition for passage, where it appeared that the defendant knew or should have known of the defect in time for repair or warning of its existence.

2. The averment that "your petitioner was in the exercise of ordinary care for her safety and did not know of the existence of said hole, which was in the sidewalk and on the principal and most public street and sidewalk of and within the city, and because of the number of people walking on said sidewalk at the time, the hole was obscured from her view, and she did not see it until after she had stepped in it, " negatived previous knowledge by the plaintiff of the defect, and did not render the petition subject to general demurrer as showing contributory negligence by the plaintiff in not seeing the hole and in stepping into it.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Petition by Cora Coker against the City of Rome. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.

Reversed.

M. B. Eubanks, of Rome, for plaintiff in error.

W. B. Mebane, of Rome, for defendant in error.

JENKINS, Presiding Judge.

LA municipal corporation "is bound to use ordinary care to keep its public streets * * * which are open for public use in a reasonably safe condition for passage." Herrington v. Macon, 125 Ga. 58, 61, 54 S.E. 71, 73. For a failure to exercise this care, it will be liable for resulting injuries, "no matter by what cause the street or sidewalk may have become defective or unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence." McFarland v. McCaysville, 39 Ga.App. 739 (1), 148 S.E. 421, 422. The question here presented is not one of first impression, but appears to have been settled in principle by the rul-ings made in City of Brunswick v. Glo-gauer, supra, 158 Ga. 792 (1), 801-812, 124 S.E. 787, and the cases which it cites and follows. In that case, as in this, the defect appears to have been what should be classed as a minor one. The Supreme Court there further expressed itself as follows: "As appears from the reports of the cases which are fully set out above, the defects in the sidewalk which produced the injuries were minor defects. Those decisions hold in effect that the minor defects under consideration were sufficient upon which to submit to the jury the question of negligence of the city in allowing the sidewalk to remain in such condition and to support a finding for the plaintiffs. Each of the cases was rendered by all of the justices of the court as it was then constituted, and, never having been overruled, they are binding as precedents. While the defect involved in the present case is somewhat different from those involved in the cases mentioned above, they are all minor defects so nearly similar that the cases cannot be distinguished upon principle. Accordingly the court is constrained to hold that the existence of the defect in the present case for the length of time and under the circumstances as disclosed by the evidence was sufficient to carry the case to the jury on the question of the defendant's negligence." In the instant case, the minor defect described in the petition appears to have been a hole caused by a broken tile at the edge of a...